AMIR ALAM KHAN, J.- This revision petition is directed against the judgment dated 21.4.1993 passed by the learned Civil Judge, Mianwali, whereby in the execution of the money decree, passed against Agent Domez Borie, a warrant of attachment was issued against the petitioner Bank.
2. The relevant facts are that the respondents No.1 and 5 and predecessor -in-interest of respondents No.2 to 4 filed a suit for recovery of sum of Rs. 3,54,253/- against one Agent Domez Borie; a French Firm engaged in the construction of Chashma Barrage. The plaint in the suit filed by the respondents proceeded on the ground that the said respondents being sub-contractors had carried out certain wooden works but were not paid by the said Agent Domez Borie and that they were entitled to recover the afore-stated amount from the said Agent Domez Borie. During the pendency of the suit, the respondents applied for attachment before the judgment of the property belonging to the Agent Domez Borie. The application filed in this behalf was disposed of on the basis of joint statement of learned counsel -for the parties whereby it was agreed that Agent Domez Borie shall deposit a security bond to the satisfaction of the court for the payment of the disputed amount, if ultimately decreed by the court failing which the properties mentioned in the list annexed with the application shall be deemed to have been attached. The bond was agreed to be filed within 15 days of the order dated 3.7.1971. It appears from the record that Agent Domez Borie did file a security bond in its name and on its behalf on 1st of September, 1971 but on being objected to by appellants Nos:1 and 5 and predecessor in-interest of respondents 2 to 4 that principal party cannot also be the guarantor so as to hind itself as security, the Agent Domez Boric was directed by order dated 14.9.1971 to furnish the security bond as originally agreed between the parties. It appears that Agent Domez Bode could not furnish the said bond within the time fixed by the court and applied for extension in time. It was thereafter that learned counsel for Agent Domez Boric made a statement that they shall furnish a bank guarantee for the payment of the suit amount, if decreed ultimately in favour of the plaintiffs. It was on the basis of this statement which was also agreed to by the counsel for the plaintiffs that the court directed that the requisite security bond as prayed by Agent Domez Boric be furnished within 7 days from the order dated 2.10.1971 failing which the properties mentioned in the list annexed with the original petition shall be deemed to have been attached. Consequent thereupon a surety bond (as described in the bond itself) was furnished by Habib Bank Limited on 5.3.1974 which was accepted by the learned trial court, whereafter proceedings in the suit continued till it was dismissed by the learned trial court vide its judgment and decree dated 5.3.1974. The learned trial court while dismissing the suit of the plaintiffs did also observe that the surety bond furnished by the defendant during the pendency of the suit is released. Agent Domez Boric applied to the learned trial court at Mianwali, for return of the surety bond as according to them , they were paying interest unnecessarily. The said application came up for hearing before the learned trial court in the absence of the plaintiffs in thesuit when the learned trial court proceeded to release the surety bond on the presentation of a certified copy of the same. The Agent Domez Boric having supplied the copy of the surety bond retrieved the original bond and presumably got himself and his surety discharged of the liability.
3. The plaintiffs/respondents preferred an appeal to the High Court from the decree of the trial court dismissing their suit which was allowed by a Division Bench of this court on 22.12.1992. The judgment of the High Court was not assailed any further and has since attained finality.
4. It appears that the judgment-debtor had left Pakistan in the meanwhile and was no more available for the satisfaction of the decree passed by the High Court, therefore, the decree holder applied for the execution of the decree against the surety i.e., M/s Habib Bank Ltd. The said Bank, however, denied its liability for payment of the decretal amount on the basis of surety bond as also on the ground that they being not a party to the suit, could not be held responsible to satisfy the decree.
5. It was vide order dated 21.4.1993 that the objection was turned down by the learned trial court and warrant for attachment of the property belonging to the Habib Bank Ltd was ordered to be issued. The said order has been assailed in the present revision petition primarily on the ground that Habib Bank Ltd., being not a party to the original suit or appeal, no coercive proceedings in the execution of the decree passed against Agent Domez Borie could be taken much less a warrant could be issued against them. The additional ground was to the effect that the learned trial court having dismissed the suit simultaneously released the surety bond furnished by the petitioner bank thus discharging the surety, therefore, the petitioner Bank is not liable to pay any amount of the decree passed against Agent Domez Borie.
6. The petition has been contested on the ground that Habib Bank Limited having stood surety for Agent Domez Boric is liable to pay the decretal amount for the said surety bond shall be deemed to he in force till the litigation between the parties was terminated voluntarily or involuntarily or set at rest by judgment of any court. It was then maintained that appeal being continuation of the suit, the surety remained hound till such time that the appeal was decided. It was lastly urged that the petitioner having contumaciously denied its liability was further liable to pay damages or the interest on the decreed amount which the plaintiffs would have ordinarily earned.
7. As far the objection that the petitioner Bank being surety was not a party to the original suit or appeal, therefore, the execution of the decree passed against Agent Domez Bode could not be taken out against them; suffice it to refer to Section 145 CPC Whereby it is provided that even though a surety is not arrayed as a party to the suit or appeal, the decree passed against the judgment debtor can also he executed against the surety and rightly so because it is well accepted that the liability of the surety is co-extensive with their judgment debtor and continues till such time that the decree is either satisfied by the judgment debtor or by the surety. The provisions of Section 145 CPC eminently makes it clear that such surety shall, for the purpose of appeal, be deemed to be a party within the meaning of Section 47 CPC. The expression "deemed to be" manifestly refers to the law whereby a thing is resumed to be in existence while in fact it is not in existence. A surety need not be made a party to the proceedings until execution is sought against him. If any authority is needed, reference may be made to "Khan Muhammad Ishaq Khan Vs. The Azad Sharma Transport Co. Ltd., and others" (PLD 1953 Lahore-22), "Cholappa Gattina Sanna and another Vs. Ramchandra Anna Pai" (AIR 1920 Bombay-331), and "Parkash Chand Mahajan Vs. Madan Theatres, Ltd" (AIR 1936 Lahore-463).
8. As far the plea that the surety bond was furnished till the stage of the suit only and since it was released by the learned trial court while dismissing the suit, therefore, the petitioner Bank did not remain liable to pay the decretal amount, it would be appropriate to refer to the joint statement of the cot:nsel which was made in regard to the disposal of the application under Order XXXVIII Rule 5 CPC, which is as follows:- "The application under Order 38, Rules 5 & 6 CPC may be disposed of in the following manner. The defendant shall deposit security bond to the satisfaction of the court for the payment of the amount of Rs. 3,54,253/-, if ultimately decreed by this court. The defendant shall deposit the security bond within a period of 15 days from today and in the event of his failure to do so, the property mentioned in the list annexed with the petition shall be deemed to have been attached under Order XXXVIII Rules 5 and 6 CPC."
The order passed thereon may also he relevant to understand the dispute as also the disposal thereof which is as under:- "In view of the joint statement of the counsel for the parties, the application in hand is disposed of in the following manner. The defendant shall deposit the security bond to the tune of Rs. 3,54,253/- to the -satisfaction of this court as a guarantee.For the payment of the suit amount if and when decreed by this court ultimately. The defendant is directed to comply with this direction of the court within a period of a fortnight from today failing which the application in hand shall he deemed to have been accepted and the property mentioned in the list annexed with the petition shall he deemed to have been attached under Order XXXVIII Rules 5 and 6 CPC."
As observed earlier, the requisite security bond could not be furnished by Agent Domez Borie within the time fixed by the court who having applied for the extension in time for furnishing the said security bond did ultimately submit a security bond in his name and on his behalf, which security bond was rejected on the ground that the principal could not also be the surety with the result that Agent Domez Boric was directed to furnish fresh security bond who in turn made a statement through his counsel on 2.10.1971 as follows:- Statement of Mr. Muhammad Asghar Khan, Advocate on behalf of defendant:- The defendant shall deposit Bank guarantee for the payment of the suit amount of Rs. 3,54,254/- etc., if decreed ultimately in favour of the plaintiff. The defendant he allowed 7 days time, for the deposit of security. The Habib Bank Ltd., Chashma Barrage, Kundian, shall be the guarantor. In case, the defendant does not comply with the directions of the Court in respect of the deposit of the security in Court, the property mentioned in list may be deemed to have been attached, before judgment."
The proposal as contained in the above said statement was agreed by the learned counsel for original plaintiffs who in turn also made a statement to the following effect:- Statement of counsel for the plaintiffs:- For the proper dispensation of justice, I agree with the statement of the counsel for the defendant.
The defendant may he allowed time (to) deposit the security prayed for."
(Word in Bracket supplied by me).
The court then proceeded to pass the following orders: "In view of the statements of counsel for the parties and in the interest of justice, I allow the defendant to deposit security bond as prayed by him within a period of seven days from today, failing which the property mentioned in the list annexed with the original petition shall he deemed to have been attached."
Consequent thereupon the surety bond was furnished by Agent Domez Borie. To complete the background of the dispute, it may not be irrelevant to reproduce the complete form of the surety bond furnished by the petitioner: "Whereas at the instance of Atta Muhammad etc., the plaintiffs in the above suit, Domez Borie, Chashma Barrage, Kundian, Mianwali, the defendant has been directed by the court to furnish security to the tune of Rs. 3,54,253/-, therefore, we, the Habib Bank Ltd., Chashma Barrage, have voluntarily become surety and do hereby bind ourselves, our heirs and executors, that in case the suit is decreed, the said Bank would pay the decretal amount in case the principal fails to pay the decretal amount and in default of his so doing we, bind ourselves, our heirs, and executors to pay the said court at its order, the said amount of Rs. 3,54,253/- or such amount not exceeding the said sum as the said court may adjudge.
Witness my hand at this day of October, 1971. Witnesses:- Sd/- 1. Major Abdur Rehman (Retd). Domez Boric, Kundian. Home Address: Vill: & P.O Mohri, Tehsil Kharian Distt: Gujrat.
Sd/- 2. Muhammad Asghar Khan Advocate, Mianwali. For Habib Bank Ltd., Chashma Barrage Colony, District Mianwali W. Pak.
Sd/- Manager Sd/- Officer Interestingly enough, the original security bond is also available on the file which appears to have been impounded by the Inspector of Stamps, board of Revenue, Punjab on 28.3.1972. It reads as follows:- "Whereas at the instance of Malik Atta MUHAMMAD and another, plaintiffs in the above suit, Domez Boric, the defendant has been directed by the court to deposit the security bond to the tune of Rs.
3,54,253/- as a guarantee for the payment of the suit amount if and when decreed by the Courts of Pakistan. Therefore, we, the Domez Boric acting through its Agent G.Thievent presently resident of Chashma Barrage Colony, District Mianwali, do hereby guarantee the payment of Rs. 3,54,253/- or such portion thereof as may be sufficient to satisfy the decree as and when passed by the Courts of Pakistan and further bind ourselves to produce and place at the disposal of the Courts property of the value of Rs.3,54,253/- or of such portion thereof as may be sufficient to satisfy the decree as passed.
Sd/- For Domez Boric Acting Agent J-Houdrw Witnesses: Sd/- Major Retd Abdur Rehman. Village and P.O. Mohri, Distt. Gujrat. Tehsil Kharian.
Sd/- 2. (M.A. Fayyazee) H.No.941 Mohallah Jahangirabad, Qila Sheikhupura.
9. The question which falls for determination is that whether the surety bond furnished by the bank was to ensure till the decision of the learned trial court or it remained in force till the disposal of the list finally. The answer is not very difficult to find, In point of fact recitals of the bonds as also the circumstances leading to the execution thereof are to be looked at to arrive at, the conclusion as to what were the intentions of the parties at the relevant time. Agent Domez Boric was a foreign consultant and construction firm, who had been granted contract for the construction of Chashma Barrage. It was one and the only, contract granted to the firm who was not expected to stay in Pakistan in the ordinary course of business till after the completion thereof while the time likely to be taken in litigation was definitely longer, therethre, the first security bond which was furnished by the firm recited as follows:- "Therefore, we, the Domez Borie acting through its Agent G.Thievent presently resident of Chashma Barrage Colony, District Mianwali, do hereby guarantee the payment of Rs. 3,54,253/- or such portion thereof as may be sufficient to satisfy the decree as and when passed by the Courts of Pakistan and further hind ourselves to produce and place at the disposal of the Court property of the value of Rs. 3,54,253/-. Or of such portion thereof as may be sufficient to satisfy the decree as passed."
The intention of Agent Domez Borie is manifest from the recitals of the security bond furnished by them. It was meant to ensure till the disposal of the lis finally for it specifically recites:- "to satisfy the decree as and when passed by the Courts of Pakistan".
The said security bond was rejected by the court because of technical objection that the principal could also not he the surety with the result that Agent Domez Boric offered to furnish hank guarantee, the terms whereof could not be any different than the one which were agreed to earlier and in order to appreciate the same, the statement of their learned counsel recorded on 2.10.1972 may be referred with advantage for it is stated therein:- "The defendant shall deposit Bank guarantee for the payment of the suit amount of Rs. 3,54,253/- etc., if decreed ultimately in favour of the plaintiffs."
Based on that is the order of the court which reads as follows:- "In view of the statement of counsel for the parties and in the interest of justice, I allow the defendant to deposit security bond as prayed by him within the period of 7 days from today."
It was argued with reference to the words "if decreed ultimately" that they were indicative of the fact that the surety bond was to endure till the determination of the dispute between the parties and that in any case the words used in the bond are very material for they read: "Therefore, we, the Habib Bank Ltd., Chashma Barrage, have voluntarily become surety and do hereby hind ourselves, our heirs and executors that in ease the suit is decreed, the said Bank would pay the decretal amount in case the principal fails to pay the decretal amount and in default of his so doing we bind ourselves, our heirs and, executors to pay the said court at its order, the said amount of Rs. 3,54,253/- or such amount not exceeding the said sum as the said court may adjudge.
10. The background as afore stated coupled with the statement of learned counsel for the parties followed by the words of the security bond as also the surety bond manifestly establishes that the surety bond was to ensure till the determination of lis finally. Learned counsel for the respondent very aptly relied on "Raj Raghubar Singh and another Vs. Jai Indra Bahadur Singh" (AIR 1919 Privy Council-55 (from Oudh) to argue that while construing the tenure of surety bond, the words and recitals of the bonds must be taken into consideration to gather the intention of the executant of the said bond. There is much force in the argument of learned counsel for the respondent for it is well-accepted that in order to interpret an agreement, it is necessary to see the intention of the parties as can be gathered from the circumstances leading to the contract itself and the words of various clauses used therein. A hare reading of the bonds furnished by Agent Domez Borie as also KBL would lead to one and the only conclusion that it was to endure till the time that the its was finally determined.
11. On the legal plane, it is well-accepted that the appeal is continuation of the suit, therefore, it was 'rightly maintained that the liability of surety revived during the appeal and could he enforced against the surety because the appeal itself was accepted. This argument also gained further support from the words and recitals used in the security bond. The said aspect apart, it would be seen that the question fell for determination in many cases and was answered time and again in view of the various dimensions of the same. As for example; there were cases of dismissal in default which were restored and decreed ultimately. It was held that the surety's liability remained uneffected for it revived with the revival of the suit. The cases of "Pindi Vs. Thaw Ma & another", (AIR 1931 Rangoon 281(2), "Tavvala Veeraswami Vs. Pulim Ramanna and others" (AIR 1935 Madras-365) and "Chotey Lal and another Vs. Sohrab A.I Khan and another" (AIR 1925 Oudh-592) may be referred. The question was also considered from the angle that the suit having been decreed at the first stage, subsequent dismissal of the appeal would not affect the liability of the surety if the suit was ultimately decreed. Reference may be made to "C.Soon Thin Vs. K.S.A.V.
Chettyar Firm" (AIR 1936 Rangoon 342). Another angle of the case which was more or less akin to the present case was examined in "Daggupati Nayudamma Vs. Sait Sivaraji Dharmachand Kottuvaru and another" (AIR (30) 1943 Madras 515) wherein the suit having been dismissed, review was granted and it was held that attachment before judgment stood revived. The real question which was grilled by the learned counsel for the parties and was argued with flair was to the effect that the trial court having dismissed the suit, the liability of the surety ceased there and then even without passing an order in that regard while in the instant case an order had been passed by the learned trial court thereby discharging the surety of its liability. Reliance was placed on "D.Manackjee Vs. R.M.N.Chettyar Firm" (AIR 1927 Rangoon-310), "Balaraju Chettiar Vs. Masilamani Pillai and others" (AIR 1930 Madras-514), "Gollamudi Venkatasubba Rao Vs. Chaparala Rosayya and another" (AIR 1915 Madras 653) and "Shankar Vs. Ram Kishen" (AIR 1915 Lahore 217). Learned counsel for the respondent on the other hand relied "Iranguada Shidramgauda Patil Vs. Irbasappa Gangappa Dalal and others" (AIR 1927 Bombay-84) and Full Bench decision of "Thampi Muhammad Abdulhadhir Vs. Padmanabha Pillai Parameswaran Pillai " (AIR 1952 Travancore Cochin-414).
12. The question as to whether attachment before judgment necessarily ceases when the suit is dismissed by the court of first instance has remained subject-matter of many decisions of various High Courts and even in spite of Full Bench decision of the Madras High Court reported as "Balaraju Chettiar Vs. Masilamani Pillai and others" (AIR 1930 Madras-514), the controversy did not come to an end for it was raised time and again and lot of head scratching was done when another Full Bench in the Indian Jurisdiction was formed in the High Court of Travancore Cochain to consider the question all over again in the case reported as "Thampai Muhammad Abdul Khadhir Vs. Patmenapha Pillai Parameswa ran Pillai" (AIR 1952 Travancore Cochain-414). The Full Bench as formed reviewed almost all the cases on the subject and finally held: "Attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff's favour is passed, even by the same court or by a superior court and this revival will be in force from the date on which the attachment before judgment is effected as provided for in the CPC."
13. The rule aforenoted was laid down after reviewing the whole case law on the subject with particular reference to the dictum in the cases of "Pindi Vs. U Thawa Ma A Another", "Chotey La! And another Vs. Sohrab A.I Khan and another" and that of "Duggaupati Nayudamma Vs. Sait Sivaraji Dharmachand Kottuvaru and another" noted Supra for in the earlier mentioned three cases it was held that the surety's liability was not effected by the dismissal of the suit in default for it revived with the revival of the suit while in the latter mentioned case review was granted and it was held that the attachment before judgment was also revived with the revival of the suit. The underlying idea of the rule laid down in the cases aforenoted was, therefore, extended to the case where the suit itself had been dismissed on trial but was decreed on appeal. In this scenario, it was held that, though, attachment effected at the primary stage had ceased with the dismissal of the suit but it revived on the decretal of the suit in appeal or by the same court and this revival shall be considered to be in force from the date on which the attachment before judgment was effected as provided for in the Civil Procedure Code, The rule aforenoted besides being one of wisdom and in accord with law is one of the dimensions of the age old principle that appeal is continuation of the suit, therefore, I respectfully follow and adopt the reasoning thereof.
There is another aspect of the matter which needs to be attended to for it was also argued that in the instant case an order was passed by the trial court thereby discharging4the surety from its liability. This aspect of the matter may not detain me any longer because it has already been held that in the statement made by the learned counsel for Agent Domez Borie as also the subsequent bond executed by HBL, the liability was incurred till the determination of the lis finally. In the realm of law, it has been so held that while it is true that attachment effected at the primary stage of the suit ceased with the dismissal of the suit but it revived with the reversal of the decree of dismissal by the appellate court, therefore, the order discharging the surety would also not stand in the way of executing the decree against the surety. Above all, the act of the court could not prejudice the rights of the parties as were available to them under the law and facts constituting their cause. The extent of liability was very well-known to Agent Domez Borie as also HBL, who stood surety for them.
Needless to add that the liability of the surety is always co-extensive with the principal.
14. This brings me to the question as to whether the petitioner should be burdened with damages or be directed to pay interest on the decretal amount for according to the respondents they had been unnecessarily and without any lawful justification which is supervisory in its nature, therefore, the respondents should be awarded damages of interest on the decretal amount, as ancillary relief, as the case may be, from the date of institution of the suit till recovery. I am afraid the request as such is misplaced, therefore, the same may not be granted. The suit was dismissed by the learned trial court while the appeal filed against the decree of dismissal was accepted with costs. The court decreeing the the appeal with costs but did not grant the petitioner damages or any interest. It was thereafter that the respondents applied for the execution of the decree and the present revision has arisen out of the execution proceedings, therefore, it would not be lawful for this court to-go behind the decree. It is no doubt true that this court while exercising power under section 115 CPC can pass such orders as it thinks fit keeping in view the facts and circumstances of each case but it is equally true that such orders are to be passed within the bounds of law. In the instant case the decree granted by the appellate court was sought to be executed in the year 1993 when it was objected to and the present revision was taken to this court. As observed earlier the HBL had bound themselves to pay the decretal amount in the event that Agent Domez Borie failed to pay the same and this liability continued till the disposal of the lis finally as is evident from the recitals of the bonds executed by them, therefore, they are obviously liable to pay the decretal amount but apart from the factual findings aforenoted, it has even been held on the legal plane that the liability of the surety which ceased with the dismissal of the suit stood revived when the suit was decreed, therefore, from 21.4.1993 onward the petitioner could not deny its liability or for that matter refused to pay the decretal amount by maintaining that since they had been discharged byjhe first court, their liability ceased for all times to come. This denial was not only illegal but also unjustified. The respondents had been deprived of the fruits of decretal amount because of this denial while the rupee value is enormously depreciated during the years that the said amount remained unpaid. In any case the respondents could have ordinarily earned profit on the amount decreed in their favour had the same be paid to them, therefore, they are entitled to interest on the decretal amount @ 14% per annum from 21.4.1993 i.e. The date of decree till such time that the same is realised. Reference in this behalf may be made to "Pakistan Railway through its General Manager Vs. Javed lqbal" (1995 SCMR 446) "and K.M.C. And another Vs. Lal Muhammad"
(1997 CLC 2022).
15. There is yet another aspect of the matter which .May also be noted i.e. This court at pre- admission stage of this revision left it to the, discretion of the petitioner to deposit the decretal amount wand simultaneously directed if such an amount is deposited, its disbursement shall be regulated by a further order from this court. The case was ultimately admitted for regular hearing on 11.7.1993 when it was reported by the petitioner that the decreed amount had been deposited in the trial court. Learned counsel for the respondents prayed for its disbursement while the said prayer was opposed by the petitioner, resultantly, it was ordered that the C.M. For temporary injunction may be set down for hearing. The said C.M. Was, however, not fixed and the case was adjourned which was subsequently transferred to this bench when the learned counsel for the parties desired that the main case should be heard rather than the application. All said and done, even though the decretal amount was deposited in court by the surety but the same could not be disbursed to the respondents because of adamant attitude of the petitioner/surety with the result that the respondents remained deprived of the fruits of the decree as also profits which they could . Have earned therefrom, therefore, the petitioners are rightly held liable to pay the profit/interest @ 14% per annum from the date of decree i.e. 21.4.1993 till -its realization.
16. In the circumstances, learned counsel for the petitioner has failed to satisfy me that the learned executing court has proceeded with any material irregularity amounting to illegality in the exercise of its jurisdiction while issuing warrant of attachment against the petitioner. In result this petition is found to be meritless, therefore, the same is dismissed with costs.